Read Time: 10 minutes

In a plea challenging the New Intermediary Rules, 2021, Bombay High Court by an interim order granted stay on Rule 9(1) and Rule 9(3), while refusing to put any stay on Rule 14 and 16.

A Division Bench of Chief Justice Dipankar Datta and Justice GS Kulkarni, while pronouncing orders, said,

“As far as Rule 14 and 16 are concerned – no immediate relief is required. For Rule 9(1) and (3), we prima facie hold it to be beyond substantive powers under the IT Act.”

Rule 9(1) mandates observance to the Code of Ethics provided under Appendix annexed to the Rules, while sub-rule (3) provides for a 3-tier structure which has to adhered by all publishers, namely,

Level I: Self-Regulation by the publishers

Level II: Self-regulation by the self-regulating bodies of the publishers

Level III: Oversight mechanism by the Central Government

Rule 14 provides for an Inter-Departmental Committee constituted by the Ministry for addressing grievances arising from decision taken at Level I or II, mentioned above.

Rule 16 provides for Blocking of information in case of Emergency.

It was added by the bench that a similar provision of blocking content in case of Emergency was provided under the IT Act of 2009, which was not contested by the Petitioners - thus there is no need to stay Rule 16 as well.

Ld. ASG, Anil Singh, on behalf of the Centre, yesterday submitted before the Bombay High Court that there was no urgency to stay the said Rules as they are in larger public interest – to curtail the menace of Fake News.

“An interim stay on the implementation or operation of Part-III of the Rules would render the legally established institutional framework for digital media publishers inoperative, leading to an environment of impunity, and concomitant spread of fake news and legally prohibited content. Further, such a situation may not only cause harm to the citizen's right to correct information, but also impact the efforts being made by various stakeholders towards development of a safe online news media ecosystem,” Centre’s Affidavit said.

It was also clarified that Part II of the IT Rules, 2021 does not contain any coercive provision which threatens the Petitioner or any other organisation – The Rules merely states that the intermediary, on failure to observe these rules, loses the intermediary status and shall be liable for action under any law for the time being in force for violation of that law.

Arguments on Presumption of Constitutionality of a Legislation was further submitted by the Centre, placing reliance inter-alia on State of TN v. P. Krishnamurthy, (2006) 4 SCC 517, PM Ashwathanarayana v. State of Karnataka, 1989 Supp (1) SCC 696, Saurabh Chaudri v. Union of India, (2003) 11 SCC 146.

A plea has been moved by Journalist Nikhil Mangesh Wagle, challenging the new Intermediary guidelines, 2021 on the pretext of it being violative of Right to Privacy under Article 21, and inconsistent with the Information Technology Act, 2000 (Parent Act).

Grounds inter-alia preferred by the Petitioner:

1. Rules Not Reasonable – therefore manifestly Arbitrary;
2. Part II of the Impugned Rules are framed under Section 87(2)(zg) IT Act, 2000, which deals with grant of safe harbour protection, that is, exemption from liability to intermediaries under Section 79(1) of the IT Act – Part II in effect has resulted into arbitrarily extending the scope of Section 79 itself. This implies that the said rules are ultra vires the parent Act.
3. Concept of Traceability violates Privacy.
4. Rule 4(2) is outside the scope of Section 69(3), IT Act, 2000.
5. Rule 7 gives excessive powers to the enforcement agencies to take action against intermediaries and making it liable for punishment under ‘any law for the time being in force’ – This will have serious repercussions because even in cases of defamation / hurt religious sentiments, etc., criminal proceedings will be initiated. It gives the Compliance Officers with quasi-judicial powers of deciding what is/is not defamatory.

It is also the contention of the petitioner that the inter-departmental committee formed under the impugned rules is not an independent agency - Rule 14(5) gives the power to the said Committee to issue orders for Warning/Censoring/Apology and likewise.

Further, The criteria of separating social media intermediary from Significant social media intermediary has provided high level of discretion to the Government and it is apparent that such a classification brings in services such as Google Docs, Practo, Naukri etc. also under the control of Government.

“Impugned Rules violate Article 19(1)(g) as the same are not reasonable restrictions as envisaged under Article 19(6) since the said rules are neither in the interest of general public nor do the same deal with professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business,” plea states.

Also Read: [IT Rules Challenge] Bombay HC adjourns plea after ASG informs likelihood of Transfer petition before Supreme Court for clubbing various petitions being taken up tomorrow

Case Title: Nikhil Mangesh Wagle v. UOI